* Professor, Agricultural Law, Department of Agricultural and Consumer Economics, University of Illinois at Urbana-Champaign. B. Mus. 1969, UIUC: A.M. 1970, Stanford University; Ph.D. 1977, UIUC; J.D. 1979, summa cum laude, UIUC. The author expresses thanks to Agricultural Law Research Assistants Paul D. Collier (1997–1998), Sheila A. Skurauskis (1995–1996), and Stan B. Stec (1998).
This material is based on work supported by the Cooperative State Research, Education and Extension Service, USDA, Project No. ILLU-05–0325, and by the Illinois Council on Food and Agricultural Research, Project No. 99Si-085–3A.
1 United Nations Environment Programme, Global Environment Outlook 2000, (visited Nov. 15, 1999) <http://www.unep.org/geo2000/english/index.htm> [hereinafter GEO 2000].
2 See Treaty Establishing the European Economic Community, Mar. 25, 1957, 298 U.N.T.S. 11 [hereinafter EEC Treaty]. The consolidated EEC Treaty, with amendments, including the Treaty of Amsterdam, is published at 1997 O.J. (C 340) 173 [hereinafter Treaty].
3 EEC Treaty art. 2. The six founding Member States were Italy, France, the Federal Republic of Germany, Belgium, Luxembourg, and the Netherlands. Article 2 has been amended and now refers, among other things, to “a harmonious, balanced and sustainable development . . . equality between men and women . . . a high level of protection and improvement of the quality of the environment . . . .” See Treaty art. 2.
4 Clive Potter, Against the Grain 26 (1998).
5 Id. at 14.
6 See Andrew Paul Manale, European Community Programs to Control Nitrate Emissions from Agriculture, 14 Int’l Env’t Rep. (BNA) 345, 345 (June 19, 1991).
7 EEC Treaty art. 3(d).
8 Id. arts. 38–47. The agricultural articles are now at Treaty, Articles 32–38. EEC Treaty Article 39(1) (now Treaty art. 33) established the objectives of the CAP:
(a) to increase agricultural productivity by promoting technical progress and by ensuring the rational development of agricultural production and the optimum utilisation of the factors of production, in particular labour;
(b) thus to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture;
(c) to stabilise markets;
(d) to assure the availability of supplies;
(e) to ensure that supplies reach consumers at reasonable prices.
Id.
9 Id. art. 38 (now Treaty art. 32).
10 Id. art. 40(3) (now Treaty art. 34(2)).
11 See Office of Official Publications of the European Communities, Our Farming Future 7–8 (1993) [hereinafter Our Farming Future].
12 See David J. Briggs & Elaine Kerrell, Patterns and Implications of Policy-Induced Agricultural Adjustments in the European Community, in Restructuring the Countryside: Environmental Policy in Practice 85 (Andrew W. Gilg ed., 1992).
13 See Stephen Haley, Assessing Environmental and Agricultural Policy Linkages in the European Community, in Environmental Policies: Implications for Agricultural Trade 103 (John Sullivan ed., Foreign Agric. Econ. Rep. No. 252, 1994).
14 See id.; see also European Environmental Bureau, Comments of the European Environmental Bureau on the Proposal for a Council Directive Concerning the Protection of Fresh, Coastal and Marine Waters Against Pollution Caused by Nitrates from Diffuse Sources, at 1 (on file with author) [hereinafter EEB].
15 See Haley, supra note 13, at 103.
16 See Our Farming Future, supra note 11, at 18.
17 See Council Regulation 2078/92, 1992 O.J. (L 215) 85. For information on the repeal of this regulation, see infra note 21.
18 See Council Regulation 2078/92, 1992 O.J. (L 215) 85. For details of the 1992 CAP reform and the agro-environmental measure, see Margaret Rosso Grossman, Agro-Environmental Measures in the Common Agricultural Policy, 25 Univ. Mem. L. Rev. 927 (1995), and sources cited therein.
19 See Council Press Release 8280, presse 149, (May 17, 1999) available at <http://europe.eu.int/comm/dg06/ag2000/press_en.htm>.
20 See Council Regulation 1251/99, 1999 O.J. (L 160) 1.
21 See Council Regulation 1257/99, 1999 O.J. (L 160) 80. Article 55 repeals Council Regulation 2078/92 and other regulations. See id. at 100. For detailed rules on the implementation of the rural development regulation, see Commission Regulation 1750/99, 1999 O.J. (L 214) 31.
22 See Council Regulation 1259/99, art. 3, 1999 O.J. (L 160) 113, 114.
23 See Robert Ballard & Karen M. Keating, Is There an Ocean of Difference?: A Comparison of the European Community’s and United States’ Environmental Regulations Protecting Air and Water Quality, 5 Vill. Envtl. L.J. 115, 152 (1994).
24 See Dale Leuck et al., The EU Nitrate Directive and CAP Reform: Effects on Agricultural Production, Trade, and Residual Soil Nitrogen 2 (USDA, Foreign Agric. Econ. Rep. No. 255, 1995); Peter M. Vitousek et al., Human Alteration of the Global Nitrogen Cycle: Causes and Consequences, 1 Issues in Ecology 3, 3 (1997). A more technical version of this report appears at 7 Ecological Applications 737 (1997).
25 See Ministry of Agriculture, Fisheries and Food (MAFF), Solving the Nitrate Problem: Progress in Research and Development 9–12 (1993, PB 1092) [hereinafter MAFF, Solving].
26 See Vitousek, supra note 24, at 4.
27 See id. at 5. For example, anhydrous ammonia is a liquid nitrogen fertilizer, and it is also used to manufacture ammonium nitrate, a solid nitrogen fertilizer. See Dale Leuck, The EC Nitrate Directive and its Potential Effects on EC Livestock Production and Exports of Livestock Products, in Environmental Policies: Implications for Agricultural Trade 91, 93 (John Sullivan ed., Foreign Agric. Econ. Rep. No. 252, 1994).
28 See GEO 2000, supra note 1.
29 Id. Introduction, Synthesis.
30 Id. chap. 2, Global Issues.
31 Id.
32 See Agra Europe, Special Report No. 60: Agriculture and the Environment 9 (1991) [hereinafter Special Report No. 60].
33 See Potter, supra note 4, at 27. A decrease in EU fertilizer use is expected during the next decade, with an average seven percent decline in nitrogen use predicted between 1999 and 2009. See Fertilizer use in long-term decline, Agra Europe (Nov. 19, 1999), at EP/11.
34 See Special Report No. 60, supra note 32, at 12. The 10 Member States are the original six, plus Denmark, Greece, Ireland, and the United Kingdom. Agra Europe reported average use as kg/ha/UAA (utilizable agricultural area). Less dramatic increases in phosphate and potash were indicated.
35 See Leuck et al., supra note 24, at 3–4.
36 See Office of Technology Assessment, United States Congress, Agriculture, Trade, and Environment: Achieving Complementary Policies 183 (1995) [hereinafter OTA].
37 See Maria Pau Vall & Claude Vidal, Nitrogen in Agriculture, in Claude Vidal et al., Agriculture, Environment, Rural Development: Facts and Figures—A Challenge for Agriculture (July 1999), (last visited Nov. 2, 1999) <http://europa.eu.int/comm/ dg06/envir/ report/en/ index.htm>.
38 See Special Report No. 60, supra note 32, at 17.
39 See OTA, supra note 36, at 183.
40 See id. at 185.
41 See GEO 2000, supra note 1, at chap. 2, Global Issues; Special Report No. 60, supra note 32, at 12.
42 European Commission, The implementation of Council Directive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources 8 (1998) [hereinafter Implementation].
43 See Leuck et al., supra note 24, at 9.
44 See id. at 2–3. The number of animals per operation may more accurately predict nitrate pollution than the number of animals per hectare. The expense of disposing of waste means that, regardless of size, farmers are likely to dispose of manure relatively close to their operations.
45 Jobst Conrad, Agriculture and the Environment in Western Europe, 5 Int’l Envtl. Aff. 79, 86 (1993).
46 See Leuck et al., supra note 24, at 3–4.
47 See EU herd sizes grow as farms get fewer, Agra Europe, Aug. 27, 1999, at EP/8. In 1997, according to the EC’s statistical office Eurostat, fewer than one percent of pig farmers raised 70.3% of pigs, and 30.3% of pigs belonged to herds of 5000 or more animals.
48 See Manale, supra note 6, at 346. For the drinking water standard of 50 mg/l, see infra notes 64–65 and accompanying text.
49 See Pierre Strosser, Maria Pau Vall, & Eva Plötscher, Water and Agriculture: Contribution to an Analysis of a Critical but Difficult Relationship, in Vidal et al., supra note 37.
50 See Special Report No. 60, supra note 32, at 16.
51 See Nick Hanley, The Economics of Nitrate Pollution Control in the UK, in Farming and the Countryside: An Economic Analysis of External Costs and Benefits 98 (Nick Hanley ed., 1991).
52 See Vitousek et al., supra note 24, at 6; Leuck, supra note 27, at 93. Nitrogen from manure may be volatilized as ammonia (NH3) or as nitrous oxide (N2O), a greenhouse gas. See generally Vall & Vidal, supra note 37.
53 See Stephen R. Crutchfield et al., Benefits of Safer Drinking Water: The Value of Nitrate Reduction 1 (1997).
54 See OTA, supra note 36, at 77.
55 See Nitrates, Nitrites in Drinking Water Unlikely to Increase Cancer Risk, NAS Says, 26 Env’t Rep. (BNA) 660, 660 (1995).
56 M.R. Payne, Farm Waste and Nitrate Pollution, in Agriculture and the Environment 63, 69 (John Gareth Jones ed., 1993).
57 See Hanley, supra note 51, at 95.
58 See Leuck et al., supra note 24, at 2.
59 See Hanley, supra note 51, at 94. A 1996 study suggested that many infants in the U.S. are exposed to dangerously high nitrate levels, either from public water systems or from private wells. See Thousands of Infants Exposed to Unsafe Levels of Nitrate, Report by Environmental Group Says, 26 Env’t Rep. (BNA) 2025, 2025 (1996). The research, from the Environmental Working Group, seems to conflict with a 1995 report from the National Academy of Sciences. See id.
60 See Commission of the European Communities, Proposal for a Council Directive concerning the protection of fresh, coastal and marine waters against pollution caused by nitrates from diffuse sources, COM(88)708 (final) at 15 [hereinafter Nitrates Proposal]. The proposed directive also appears at 1989 O.J. (C 54) 4, with an amended version (after the Parliament’s opinion) at 1990 O.J. (C 51) 12.
61 See Centers for Disease Control, Spontaneous Abortions Possibly Related to Ingestion of Nitrate-Contaminated Well Water—LaGrange County, Indiana, 1991–1994, 45 Morbidity and Mortality Weekly Report 569, 569 (1996).
62 See Leuck et al., supra note 24, at 2.
63 Stephen Carpenter et al., Nonpoint Pollution of Surface Waters with Phosphorus and Nitrogen, 3 Issues in Ecology 2, 6 (1998). For a more technical version of this report, see 8 Ecological Applications 559 (1998).
64 See Council Directive 80/778, 1980 O.J. (L 220) 11. This directive will be repealed five years after entry into force of the new drinking water directive. Council Directive 98/83, art. 16, 1998 O.J. (L 330) 32, repealing Directive 80/778. The nitrate standard in the new Directive remains 50 mg/l. Council Directive 98/83, supra.
The U.S. drinking water standard is 10 mg/l, but the US measures nitrate level differently. “The EU measures the level of nitrate concentration by measuring the whole NO3 molecule; the United States measures the level of nitrate concentration by measuring just the nitrogen (N) component of the molecule.” Fifty mg/l is about 11 mg/l, when only N is considered. See OTA, supra note 36, at 175 n.12.
65 See Directions towards sustainable agriculture, COM(99)22 final at 11 [hereinafter Directions]; Implementation, supra note 42, at 7.
66 See EEB, supra note 14, at 3. As the EEB and others have noted, phosphates are also relevant to eutrophication, because phosphates are often the limiting factor in eutrophication of fresh water. Symptoms of eutrophication are “algal blooms, dead plant material, lack of dissolved oxygen.”
67 Citing problems of eutrophication, which promotes algae growth, the Worldwide Fund for Nature began a program, Living Rivers for Europe, in September 1999. Among the program’s demands on EU decisionmakers are strict enforcement of the Nitrates Directive and conditions attached to CAP payments to prevent pollution of rivers. See Reversing Eutrophication in EU Rivers Among Targets of New WWF Initiative, 22 Int’l Env’t Rep. (BNA) 797, 797 (1999).
68 See Resolution of the Council and the Representatives of the Governments of the Member States, Meeting Within the Council of 1 February 1993 on a Community Programme of Policy and Action in Relation to the Environment and Sustainable Development, 1993 O.J. (C 138) 1, 36 [hereinafter Fifth EAP].
69 See Anoop Kapoor & T. Viraraghavan, Nitrate Removal from Drinking Water—Review, 123 J. of Envtl. Eng’g 371, 371 (1997) (discussing and comparing water treatment methods).
70 Nitrates Proposal, supra note 60, at 17. “[T]he high load of organic detritus reacts with chlorine to form carcinogens known as trihalomethanes.” Carpenter et al., supra note 63, at 5.
71 See Nitrates Proposal, supra note 60, at 16.
72 See Carpenter et al., supra note 63, at 4.
73 EEB, supra note 14, at 4.
74 Vitousek et al., supra note 24, at 9.
75 Id.
76 Id. at 6.
77 For a more detailed explanation and numerous references, see Grossman, supra note 18, at 937–53.
78 See Ludwig Krämer, The Single European Act and Environment Protection: Reflections on Several New Provisions in Community Law, 24 Common Mkt. L. Rev. 659, 659 (1987).
79 See EEC Treaty art. 2.
80 Id. Preamble.
81 For information on the history of environmental legislative power, see Stanley P. Johnson & Guy Corcelle, The Environmental Policy of the European Communities (2d ed. 1995); Ludwig Krämer, EEC Treaty and Environmental Protection (1990).
82 See Philippe Sands, European Community Environmental Law: The Evolution of a Regional Regime of International Environmental Protection, 100 Yale L.J. 2511, 2513-14 (1991).
83 See EEC Treaty art. 100 (as amended 1992; now Treaty art. 94). Article 100 provided: “The Council shall, acting unanimously on a proposal from the Commission . . . issue directives for the approximation of such laws, regulations or administrative provisions of the Member States as directly affect the establishment or functioning of the common market.” Id.
84 See id. art. 235 (now Treaty art. 308). Article 235 reads:
If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the [European Parliament], take the appropriate measures.
Id.
85 See Sands, supra note 82, at 2512–13.
86 See 1987 O.J. (L 169) 1.
87 See 1992 O.J. (C 191) 1. Entry into force on November 1, 1993, is noted at 1993 O.J. (L 293) 61, after ratification by all the Member States.
88 See EEC Treaty art. 2 (as amended by Maastricht Treaty art. G(2)).
89 Id. art. 3(k) (as amended by Maastricht Treaty art. G(2)).
90 Id. art. 130r(2) (as amended by Maastricht Treaty art. G(38)).
91 1997 O.J. (C 340) 1. The Amsterdam Treaty was signed October 2, 1997; it became effective May 1, 1999, after ratification by all Member States. 1999 O.J. (C 120) 24. The Consolidated Treaty governing the EC (after amendment) is printed at 1997 O.J. (C 340) 173-308.
92 See Treaty art. 2.
93 See id. Article 6 reads: “Environmental protection requirements must be integrated into the definition and implementation of the Community policies and activities referred to in Article 3, in particular with a view to promoting sustainable development.” Id. art. 6.
94 See id. art. 176. The provision was also part of art. 130t of the amended EEC Treaty.
95 See id.
96 See id. art. 95(4).
97 Treaty art. 95(5).
98 See id. art. 95(7).
99 See id. Declaration 12. This declaration, on environmental impact assessment, reads: “The conference notes that the Commission undertakes to prepare environmental impact assessment studies when making proposals which may have significant environmental implications.” Id.
100 See Declaration of the Council of the European Communities and of the Representatives of the Governments of the Member States Meeting in the Council of 22 November 1973 on the Programme of Action of the European Communities on the Environment, Annex II, 1973 O.J. (C 112) 1, 3, 5 [hereinafter First EAP]. The First EAP quotes the statement on the environment from the Paris Summit, October 19-20, 1972.
101 See generally First EAP, supra note 100.
102 See Auke Haagsma, The European Community’s Environmental Policy: A Case-Study in Federalism, 12 Fordham Int’l L.J. 311, 319 (1989); Christian Zacker, Environmental Law of the European Economic Community: New Powers Under the Single European Act, 14 B.C. Int’l & Comp. L. Rev. 249, 262 (1991).
103 See Haagsma, supra note 102, at 319.
104 First EAP, supra note 100, at 39.
105 Id. at 40.
106 See Resolution of the Council of the European Communities and of the Representatives of the Governments of the Member States Meeting Within the Council of 17 May 1977 on the Continuation and Implementation of a European Community Policy and Action Programme on the Environment, 1977 O.J. (C 139) 1 [hereinafter Second EAP].
107 See id. at 20.
108 Id. at 22.
109 See Resolution of the Council of the European Communities and of the Representatives of the Governments of the Member States, Meeting Within the Council, of 7 February 1983 on the Continuation and Implementation of a European Community Policy and Action Programme on the Environment (1982–1986), 1983 O.J. (C 46) 1 [hereinafter Third EAP].
110 The polluter pays principle is one of the guiding environmental principles that appears in the consolidated EEC Treaty. See Treaty art. 174(2). It was articulated in the OECD Guiding Principles on the Environment, reprinted in 11 Int’l Legal Materials 1172 (1972).
111 See Resolution of the Council of the European Communities and of the Representatives of the Governments of the Member States, Meeting Within the Council of 19 October 1987 on the Continuation and Implementation of a European Community Policy and Action Programme on the Environment (1987–1992), 1987 O.J. (C 328) 1 [hereinafter Fourth EAP].
112 See id. at 1–2.
113 See id. at 10, 31–32. Article 130r of the Treaty, added by SEA article 25, introduced this integration principle, which now appears in article b. See also Treaty art. 6.
114 Fourth EAP, supra note 111, at 24. The Program also refers to excess use of pesticides and continues: “advisory and education actions are also necessary to increase farmers’ awareness of the problems which may arise; in this way agriculture, like other sectors, would contribute to the Community’s efforts to reduce water pollution.” Id.
115 See generally Fifth EAP, supra note 68, Annex: Towards Sustainability. Part I (Council Resolution) and Part II (Program) are published in the Official Journal. Part III (The State of the Environment in the European Community) is published as COM(92)93 final.
116 See id. Part III, at 23, 57–58.
117 See id. Part II, at 38, Table 4: Agriculture and Forestry.
118 Council Directive 91/676 concerning the protection of waters against pollution caused by nitrates from agricultural sources, 1991 O.J. (L 375) 1 [hereinafter Nitrates Directive].
119 See supra notes 111–14 and accompanying text.
120 This Article does not focus on regulation of sewage sludge, which is governed by Council Directive 86/278 on the protection of the environment, and in particular of the soil, when sewage sludge is used in agriculture. See 1986 O.J. (L 181) 6, amended by Council Directive 91/692, 1991 O.J. (L 377) 48. That measure requires treatment of sewage sludge before application to agricultural land, and prohibits use of sludge that exceeds given concentrations of heavy metals.
Sewage sludge attracted attention in the summer of 1999 because of its use in France and other EU nations as a component of animal feed. See Slurry in feed ‘common’ in France, says EU study, Agra Europe, Oct. 22, 1999, at EP/9.
121 Nitrates Directive, preamble, supra note 118, at 1 (referring to the Commission Green Paper, Perspectives for the Common Agricultural Policy, COM(85)333).
122 See EEC Treaty, as amended by SEA, art. 130s.
123 See Nitrates Proposal, supra note 60, at 21–33. For somewhat dated information, see Søren Rude & Boie S. Frederiksen, National and EC Nitrate Policies—Agricultural Aspects for 7 EC Countries (1994) (dealing with Belgium, Denmark, Germany, France, the Netherlands, the United Kingdom, and Italy); Manale, supra note 6.
124 See Council Directive 80/778, supra note 64.
125 See Nitrates Directive, preamble, supra note 118, at 1. The draft directive, COM(88)708 final, seems more friendly to agriculture than the final version. The preamble to the proposal, for example, includes the following two clauses, which have been omitted from the Directive:
Whereas there is a need for the benefit of Community agriculture for certain nitrogen containing fertilizers and manures to be used; . . . Whereas the use of livestock manures and similar materials should be encouraged, consistently with the protection of the freshwaters of the Community, in order to conserve natural resources.
Nitrates Proposal, supra note 60, at 38, 39.
126 Nitrates Directive, supra note 118, art. 1, at 2.
127 These deadlines are measured from the date the Directive was notified to the Member States: December 19, 1991. For example, Nitrate Vulnerable Zones were to be designated within two years from notification; Action Programs, within two additional years. Because these dates have passed, deadlines will not be emphasized in the text. See id. at 3–5.
128 See infra notes 163–75 and accompanying text.
129 See Nitrates Directive, supra note 118, art. 3(1) & Annex I, at 3, 6. The criteria require consideration of the present and potential condition of waters, if preventive action pursuant to art. 5 of the Directive is not taken.
130 For surface freshwaters, the Nitrates Directive refers to Council Directive 75/440 concerning the quality required of surface water intended for the abstraction of drinking water in the Member States, 1975 O.J. (L 194) 26, as amended. The 50 mg/l limit is mandatory; the guideline limit is 25 mg/l. See id., Annex II.
131 This value, for drinking water, is the maximum allowable level. The European Environmental Bureau strongly criticized the draft directive for using this value, instead of the guideline value of 25 mg/l. Indeed, for infants, even 25 mg/l may be harmful. See EEB, supra note 14.
132 The Directive (art. 2(i)) gives a definition of eutrophication: “the enrichment of water by nitrogen compounds, causing an accelerated growth of algae and higher forms of plant life to produce an undesirable disturbance to the balance of organisms present in the water and to the quality of the water concerned.” Nitrates Directive, supra note 118, at 2.
133 See id. art. 6, at 4. The monitoring program is to be repeated every four years. Methods of measurement for monitoring, established in earlier directives, are set out in Annex IV to the Directive. See id. at 8.
134 See id. at 3.
135 See id. arts. 3(2), (4), (5), at 3. Article 3(3) provides for cooperation when waters from one Member State affect another State.
136 Perhaps this requirement for training responds to a comment from the Economic and Social Committee on the draft proposal: “As penalties do not constitute effective deterrents, the Directive should comprise recommendations to Member States regarding the role of the programmes in informing, advising and assisting both producers and users of manure and fertilizers, thus ensuring maximum impact in a short space of time.” Economic and Social Committee, Opinion on the proposal for a Council Directive concerning the protection of fresh, coastal and marine waters against pollution caused by nitrates from diffuse sources, ¶ 2.10, 1989 O.J. (C 159) 1, 2.
137 See Nitrates Directive, supra note 118, arts. 4(1), 5(4)(b), at 3.
138 See id. Annex II, at 6. Required provisions include periods when application of fertilizer is inappropriate; rules for application to steeply sloping, saturated, flooded, frozen, or snow-covered ground; conditions for application near watercourses; capacity and construction of manure storage vessels; and procedures for application of chemical fertilizer and livestock manure. See id. Optional provisions include land-use management practices, vegetative cover to take up nitrogen, farm-level fertilizer plans and record-keeping, and prevention of nitrate pollution from run-off and leaching.
139 See id. art. 5, at 3–4.
140 See Nitrates Directive, supra note 118, Annex III at 3, 7.
141 Id. art. 5(5), at 3.
142 See id. at 7. The nitrogen supply in this calculation includes the nitrogen in the soil when the crop starts to use it at the end of winter, mineralization of organic nitrogen reserves in soil, added nitrogen from livestock manure, and added nitrogen from chemical and other fertilizers.
143 See id., Annex III(1).
144 Id., Annex III(2).
145 This maximum represents a change from the approach of the proposed Directive. See Nitrates Proposal, supra note 60 (requiring, at Article 4 and Annex II, measures to ensure that manure would not exceed the amount produced by a specific number of animals). The proposed annex listed the maximum number of animals per hectare: e.g., two dairy cows, 16 fattening pigs, five sows with piglets. Also, the draft directive included rather specific measures in Article 4; some of these now appear in Annex III of Directive 91/676. The draft directive, at Article 4(4), would have required treatment of certain municipal sewage discharges, a provision omitted from Directive 91/676, which focuses on agricultural sources of nitrogen. See generally id.
146 See Nitrates Directive, supra note 118, Annex III at 7. The Nitrates Directive manure limits are reflected in other legislation. For example, a recent regulation that governs organic livestock farming limits total annual manure application to 170 kg N/ha, and refers to the Nitrates Directive. See Council Regulation 1804/99 of July 19, 1999 supplementing Regulation (EEC) No. 2092/91 on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs to include livestock production, Annex, 1999 O.J. (L 222) 1, 14.
147 See Nitrates Directive, supra note 118, Annex III(2)(b), at 7.
148 See id. art. 12, at 4–5.
149 See Leuck, supra note 27, at 95.
150 Id. at 97.
151 See id. at 97, 100. In the 10 European countries analyzed, average reduction to meet the Directive looks rather moderate: sheep, 1%; dairy, 7.8%; beef, 4.8%; poultry, 10%; pigs, 11.7%. But these numbers do not reflect areas of concentrated livestock production, where nitrate pollution is especially severe and far more reduction will be necessary. See id. at 97.
152 See Directions, supra note 65, at 11.
153 See id.
154 Id; see Implementation, supra note 42, at 5.
155 COPA, the European farmers’ organization, commented on the draft version of the Nitrates Directive in 1990. COPA believed that guidelines for good agricutural practice, required by art. 4 of the Directive, should apply in all regions. Further, ‘[r]estrictive measures should only be implemented in sensitive or vulnerable areas. The farmers in those areas, who are obliged to apply measures which go beyond agricultural practice, should receive full financial compensation for the resultant decline in income.” COPA Proposals for the Definition of a Code of “Good Agricultural Practice” in Connection with the Commission’s Proposal for a Directive on “Nitrates” (Com(88)708 final), Pr(90)17.
156 See Nitrate Sensitive Areas in England, infra notes 264–87 and accompanying text.
157 See Council Regulation 1257/99, 1999 O.J. (L 160) 80.
158 Id. art. 23(2), at 90.
159 See id. art. 24(1).
160 Commission Regulation 1750/99, art. 17(1), 1999 O.J. (L 214) 31, 35.
161 See id. art. 12(c), at 34. Livestock density must be defined to include “in the case of an undertaking aimed at limiting nutrient leaching, all livestock kept on the farm relevant to the undertaking in question.” Id.
162 Id. art. 17(3), at 35.
163 See Nitrates Directive, supra note 118, art. 10, at 4. Annex V lists the general types of information required in the Member State reports. See id. at 8.
A list of Member State legislation implementing the Directive can be found in the SCAD-Plus database of National Implementation Measures. See National Implementation Measures, (visited Oct. 6, 1999) <http://europa.eu.int/scadplus/leg/en/mne/ m91_676.htm>. The list may not reflect the most current Member State regulatory measures.
164 See Nitrates Directive, supra note 118, art. 11, at 4.
165 See generally European Commission, Measures Taken pursuant to Council Directive 91/676/EEC concerning the Protection of Waters Against Pollution caused by Nitrates from Agricultural Sources 8 (1998) [hereinafter Measures Taken]; see also Report of the Commission to the Council and European Parliament, Measures Taken pursuant to Council Directive 91/676/EEC concerning the Protection of Waters against Pollution caused by Nitrates from Agricultural Sources: Summary of Reports submitted to the Commission by Member States under Article 11, COM(98)16.
166 See generally Measures Taken, supra note 165; see also Nitrates Directive, supra note 118, Annex V, at 8.
Annex V of the Directive offered significant flexibility to Member States. Some Member States, however, omitted information or had not taken measures about which reporting was required. See Measures Taken, supra note 165, at 8. The Commission planned to propose a common reporting format for Member States to ensure more consistent information for reports due June 21, 2000.
167 See Measures Taken, supra note 165, at 9. The States are Austria, Denmark, Germany, Luxembourg, and the Netherlands.
168 See id. at 9–10.
169 See id. at 13.
170 See id. at 13–14.
171 See id. at 14.
172 See Measures Taken, supra note 165, at 14. Under the Directive, Annex III, Member States can decide to calculate nitrogen on the basis of the number of livestock that produce 170 kg N/ha.
173 See id. at 14–15.
174 See Nitrates Directive, supra note 118, at 8.
175 See Measures Taken, supra note 165, at 17. Agro-environmental payments were enacted as a measure accompanying the Mac Sharry Reform. See Council Regulation 2078/92, 1992 O.J. (L 215) 85.
176 See The Implementation of Council Directive 91/676/EEC concerning the Protection of Waters against Pollution caused by Nitrates from Agricultural Sources, COM(97)473 final. References to the report in this Article are based on another document, drawn up on the basis of COM(97)473. See Implementation, supra note 42.
177 See Implementation, supra note 42, at 5.
178 Measures Taken, supra note 165.
179 See Implementation, supra note 42, at 11–14.
180 See id. at 11–12.
181 See id. at 15.
182 Id. The Commission noted that the Dutch program had been submitted December 22, 1995, and it used the derogation from maximum nitrogen quantities allowed by Annex III of the Directive. The Commission did not accept the derogation, and the Dutch program was withdrawn.
183 See Nitrates Directive, supra note 118, art. 11, at 4.
184 See Implementation, supra note 42, at 16.
185 Id. at 17. This is the Commission’s main rationale for its failure to propose revisions pursuant to Article 11.
186 Id. at 5.
187 See id., at 19.
188 See Special Report No. 3/98 concerning the implementation by the Commission of EU policy and action as regards water pollution accompanied by the replies of the Commission, 1998 O.J. (C 191) 2, 9.
189 See id. at 9–10.
190 Economic and Social Committee, Opinion on the proposal for a Council Directive concerning the protection of fresh, coastal, and marine waters against pollution caused by nitrates from diffuse sources, 1989 O.J. (C 159) 1, 1.
191 Implementation, supra note 42, at 5.
192 Id. at 8.
193 Arthur Rogers, Compliance With Current Nitrate Rules to Be Commission’s Focus, Official Says, 21 Int’l Env’t Rep. (BNA) 1056, 1957 (1998) (quoting Patricia McKenna, spokesperson for the European Union’s Environmental Committee).
194 See Implementation, supra note 42, at 5. The Amsterdam Treaty allows the Commission to begin infringement proceedings against Member States that fail to comply with EC directives. See Treaty art. 226 (formerly art. 169). Moreover, in 1998, DG XI press releases indicated that 13 States were still subject to infringement proceedings in connection with the Nitrates Directive. See Commission acts against Spain, United Kingdom, Portugal, Finland and France to curb water pollution by nitrates, IP/98/331 (Apr. 6, 1998); Commission acts against Belgium, Germany and Luxembourg for their continuing failure to curb water pollution by Nitrates, IP/98/637, (July 7, 1998) <http://europa.eu.int/en/comm/ dg11/press/98331.htm> and <http://europa.eu.int/en/comm/dg11/press/98637.htm >.
195 See Rogers, supra note 193, at 1056; see generally COM(97)473, supra note 176; COM(98)16, supra note 165.
196 See Rogers, supra note 193, at 1058.
197 See Directions, supra note 65, at 11. In July 1999, infringement proceedings against 12 States continued. See Water pollution by nitrates: Commission takes further steps against several Member States, (July 2, 1999) <http://europa.eu.int/rapid/gi/apcgi.ksh? p_action.gettxt=gt&doc=IP/99/450½0½RAPID&lg=EN>. In January 2000, 12 States were still subject to proceedings. Water pollution by nitrates: Commission takes further legal steps against Greece, Austria and Luxembourg, 1P/00/30, (Jan. 13, 2000) <http: //www.europa.int/rapid/start/cgi/guesten.ksh?p-action.settxtsgt30/0/RAPIDlgE>. Austria and Luxembourg will receive supplementary reasoned opinions.
198 See New Legal Cases Announced Against Nine States for Environmental Infractions, 22 Int’l Env’t Rep. (BNA) 905, 905 (1999).
199 See Case 71/97, Commission v. Spain, 1998 ECJ CELEX LEXIS 6430 (1998); Case 195/97, Commission v. Italian Republic, 1999 ECJ CELEX LEXIS 1393 (1999). In addition, Case 293/97, The Queen, ex parte Standley, involved implementation of the Directive in the United Kingdom. This decision is discussed infra at notes 340–64 and accompanying text.
200 See Case 71/97, 1998 ECJ CELEX LEXIS 6430, at *4 (¶ 1). Spain had also violated related requirements of the Directive, including its obligation to notify the Commission of its designation of NVZs and to establish codes of good agricultural practice. See id. at **10–11 (¶ 19).
201 Id. at **7–8 (¶¶ 11–12).
202 See id. at *9 (¶ 14-15).
203 See id. at *10 (¶ 17).
204 See id. (¶¶ 19–20). Although Spain argued that some autonomous communities did eventually adopt codes of practice and identify NVZs, settled case law prevented the Court from taking account of measures adopted after commencement of the case. See id. (¶ 18).
205 See Case 195/97, 1999 ECJ CELEX LEXIS 1393, at *2 (¶ 1).
206 See id. at *5 (¶ 15, 16).
207 See id. at *5 (¶ 13).
208 See id. at *7 (¶ 17).
209 See id. (¶¶ 19–20).
210 Payne, supra note 56, at 70.
211 Susanne Seymour & Graham Cox, Nitrates in Water: The Politics of Pollution Regulation, in Restructuring the Countryside: Environmental Policy in Practice 182 (Andrew W. Gilg ed., 1992).
212 See Council Directive 80/778, supra note 64, Annex I, at 11. For information on the replacement of this directive, see supra note 64.
213 See id., Annex I, at 18.
214 See Seymour & Cox, supra note 211, at 183. The 100 mg/l limit was recommended by the World Health Organization (WHO) in 1970, but during the 1960s and 1970s WHO upper limits varied from 45 to 100 mg/l. See id.
215 See John Archer et al., The Pilot Nitrate Sensitive Areas Scheme, Final Report 4 (1998).
216 See Seymour & Cox, supra note 211, at 184–85. These authors call the arguments of the water authorities “somewhat disingenuous” because in some areas, they had trouble meeting even the higher standard of 100 mg/l. See id. at 185.
217 See id. at 186–95.
218 See Archer et al., supra note 215, at 4.
219 See id. at 4-5. See, for example, the summary report, MAFF, Solving, supra note 25.
220 See Simon Ball & Stuart Bell, Environmental Law 299 (1991).
221 See Water Act, 1989, ch.15 (Eng.).
222 See Ball & Bell, supra note 220, at 298, 301.
223 See Water Resources Act, 1991, ch.57 (Eng.).
224 See Environment Act, 1995, §§ 2(1)(a), 2(3); William Howarth, Legal Approaches to the Prevention of Agricultural Water Pollution in England and Wales, 45 Drake L. Rev. 197, 199 n.5 (1997).
225 See Water Act, 1989, ch.15 (Eng.), § 112. This section authorized voluntary areas, mandatory areas without compensation, and mandatory areas with compensation. See id.
226 Water Resources Act, 1991, ch.57 (Eng.), §§ 94–95.
227 Id. § 94(2).
228 See Grossman, supra note 18, at 1017–18; Margaret Rosso Grossman, Farmers and the Environment under the Common Agricultural Policy of the European Union: The Agro-Environmental Measure in the United Kingdom, 28 U. Toledo L. Rev. 663, 683–84 (1997) [hereinafter Farmers and the Environment].
229 See Agriculture Act, 1986, ch.49 (Eng.).
230 Several regulations applied over the years. These were consolidated in Council Regulation 2328/91, arts. 21–24, 1991 O.J. (L 218) 1, 14–15. See also Grossman, supra note 18, at 1017–18.
231 See Council Regulation 2078/92, 1992 O.J. (L 215) 85.
232 See Council Regulation 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations, arts. 22–24, 1999 O.J. (L 160) 80, 90.
233 See Commission v. United Kingdom, Case C-337/89, 1992 E.C.R. I-6103. The Commission brought this case in October 1989, and the Court issued its decision in November 1992. In part, the case concerned the UK’s alleged failure to comply with the maximum admissible concentration for nitrates in 28 water supply zones. In defense, the UK argued that its “failure to achieve the objective is due to extraneous factors relating in particular to techniques used in agriculture.” Id. at I–6147. The Court held in part that the UK had failed to meet the Drinking Water Directive requirements as to nitrates. See id. at I–6152.
The UK continues to have difficulties with the Drinking Water Directive. See, e.g., Commission v. United Kingdom, Case C-340/96, 1999 ECJ CELEX LEXIS 1059 (Apr. 22, 1999).
234 See generally Nitrates Proposal, supra note 60.
235 See Department of the Environment, The nitrate issue (1988), cited in M.B.M. Harryman, Water Source Protection and Protection Zones, in Agriculture and the Environment 134 (J. G. Jones ed., 1993).
236 See Water Act, 1989, § 112 (Eng.).
237 See Nitrate Sensitive Areas (Designation) Order 1990, S.I. 1990, No. 1013, as amended by S.I. 1990, No. 1187; S.I. 1993, No. 3198 (raising premiums). This Order was repealed by S.I. 1995, No. 1708, reg. 3 (June 1, 1996).
238 See S.I. 1990, No. 1013.
239 See Harryman, supra note 235, at 135. This Government position seems to contradict the polluter pays principle:
For most pollution policy in this country, the ‘polluter pays’ principle applies to any control regime, both for cleaning up damage to the environment, and for measures that satisfy environmental objectives. In the case of nitrate the Government recognizes that the situation is exceptional, and there are special circumstances that do not and cannot apply to other forms of water pollution. Firstly, nitrate is a natural and necessary prerequisite for agriculture, and without it plants cannot grow. Secondly, it has been the policy over many years to encourage agricultural production and with it the use of fertilizers. Thirdly, nitrate leaching is a function of the agricultural process of which fertilizers application is but a part; it may arise from activity some considerable time ago. . . . It is these exceptional circumstances that have led the Government to conclude that some agricultural measures to control nitrate levels in water should attract compensation.
Id.
240 See Archer et al., supra note 215, at 11–12.
241 See S.I. 1990, No. 1013, art. 3.
242 See id. art. 4. The Minister may enter an agreement with a landowner or with a tenant who has the landowner’s written consent. Normally, farmers must enter a basic scheme agreement for all of their land within the NSA; tenants may enter land owned by one landlord, even if they farm other land owned by landlords who refuse to give consent.
243 See id. art. 7 & Schedule 4. Some payment levels were increased by S.I. 1993, No. 3198.
244 See Archer et al., supra note 215, at 9–10.
245 See S.I. 1990, No. 1013, art. 6.
246 See id. art. 2 & Schedules 1 & 2.
247 See id. Schedule 1; see also MAFF, Solving, supra note 25, at 30.
248 See S.I. 1990, No. 1013, Schedule 1.
249 See id. Schedule 4.
250 S.I. 1993, No. 3198, Schedule. Payments were increased because, after the 1992 CAP reform, the cost of complying with the premium scheme had increased. See Archer et al., supra note 215, at 15–16.
251 See S.I. 1990, No. 1013, Schedule 2.
252 See MAFF, Pilot Nitrate Scheme, Nitrate Advisory Areas 2 (1990).
253 See MAFF, Solving, supra note 25, at 31–32.
254 See Archer et al., supra note 215, at 15.
255 Catherine Paice, UK Farmers’ Representatives Skeptical Over Successes of the Pilot Nitrate Sensitive Areas Scheme, Estates Gazette, July 27, 1991, at 76.
256 MAFF, High Final Uptake for Pilot Nitrate Sensitive Areas Scheme, News Release 196/91, June 20, 1991 (quoting then-Agricultural Minister John Gummer).
257 See generally Archer et al., supra note 215.
258 See id. at 2, 38.
259 See id. at 2, 21.
260 Id. at 39.
261 Archer et al., supra note 215, at 3.
262 See Staci J. Pratt et al., A Comparison of US and UK Law Regarding Pollution from Agricultural Runoff, 45 Drake L. Rev. 159, 184–85 (1997).
263 See Archer et al., supra note 215, at 3.
264 See 1992 O.J. (L 215) 85. For details of the regulation, see Grossman, supra note 18, at 1033–48.
265 Council Regulation 2078/92, preamble, 1992 O.J. (L 215) at 85.
266 On UK implementation of the regulation, see Farmers and the Environment, supra note 228, at 681–94.
267 See Nitrate Sensitive Areas Regulations 1994, S.I. 1994, No. 1729, amended by S.I. 1995, No. 1708; S.I. 1995, No. 2095; S.I. 1996, No. 3105; S.I. 1997, No. 990; S.I. 1998, No. 79; S.I. 1998, No. 2138. For details see Farmers and the Environment, supra note 228, at 688–90.
268 See MAFF, Minister Launches New Nitrate Sensitive Areas, News Release 258/94 (July 1, 1994).
269 See S.I. 1995, No. 1708, reg. 2(9), Schedule 1 (incorporating the Pilot NSAs in the NSA scheme).
270 See MAFF/IB Departmental Report 1999, ¶ 4.53, (visited May 20, 1999) <http://www. maff.gov.uk>.
271 See S.I. 1994, No. 1729, Nitrate Sensitive Areas Regulations 1994, reg. 4, amended by S.I. 1995, No. 1708; S.I. 1995, No. 2095; S.I. 1996, No. 3105.
272 See S.I. 1994, No. 1729, reg. 7 & Schedule 2, as amended.
273 See MAFF, Nitrate Sensitive Areas Scheme: Explanatory Booklet 18–19 (1994).
274 See S.I. 1994, No. 1729, Schedules 3 & 4, as amended.
275 See id. Schedule 3, as amended.
276 See id. Nitrogen content of organic nitrogen fertilizer (e.g., manure) is assessed on the basis of available nitrogen content.
277 See id. Schedule 6, as amended.
278 See id. Schedule 4.
279 See id. The last two options were added by S.I. 1995, No. 1708, reg. 2(10), Schedule 2 (woodland) and S.I. 1995, No. 2095, reg. 2(7)(c) (set-aside).
280 See S.I. 1994, No. 1729, Schedule 5.
281 See id. Schedule 6.
282 Amendments are listed supra, note 267.
283 See S.I. 1998, No. 2138, reg. 2.
284 See Letter from Chris Jennings, MAFF, Rural and Marine Environmental Division (June 2, 1999) (on file with author) [hereinafter Jennings Letter].
285 See MAFF/IB, supra note 270, ¶¶ 4.50–.53.
286 See Jennings Letter, supra note 284.
287 See infra notes 321–29 and accompanying text.
288 Implementation of EC measures in the UK involves England, Wales, Scotland, and Northern Ireland. England and Wales often implement measures jointly, but Wales is now in the process of making its legislation more independent. Scotland normally enacts independent, but often similar, programs. See Farmers and the Environment, supra note 228, at 682. Many recent UK regulations are available at <http://www.hmso.gov.uk>.
For implementation in Scotland, see The Action Programme for Nitrate Vulnerable Zones (Scotland) Regulations 1998, S.I. 1998, No. 2927 (S. 171). Scotland has just one NVZ, designated in Protection of Waters Against Nitrate Pollution (Scotland) Regulations 1996, S.I. 1996, No. 1564.
For Northern Ireland, see Action Programme for Nitrate Vulnerable Zones Regulations (Northern Ireland) 1999, S.R. 1999, No. 156; Protection of Water Against Agricultural Nitrate Pollution Regulations (Northern Ireland) 1996, S.R. 1996, No. 217, amended by S.R. 1999, No. 3.
289 See The Protection of Water Against Agricultural Nitrate Pollution (England and Wales) Regulations 1996, S.I. 1996, No. 888.
290 See The Farm Waste Grant (Nitrate Vulnerable Zones) (England and Wales) Scheme 1996, S.I. 1996, No. 908.
291 See The Action Programme for Nitrate Vulnerable Zones (England and Wales) Regulations 1998, S.I. 1998, No. 1202.
292 See MAFF & Welsh Office Agriculture Department, The Water Code—Code of Good Agricultural Practice for the Protection of Water (PB 0587, revised October 1998) [hereinafter The Water Code].
293 See, e.g., MAFF, Guidelines for Farmers in NVZs (PB 3277, 1998) [hereinafter Guidelines]; MAFF, Manure Planning in NVZs (PB 3577, 1988) [hereinafter Manure Planning].
294 See supra notes 163–209 and accompanying text.
295 See Department of the Environment, MAFF, Welsh Office, Consultation Paper: Methodology for Identifying Sensitive Areas (Urban Waste Water Treatment Directive) and Methodology for Designating Vulnerable Zones (Nitrates Directive) in England and Wales (March 1993). A 1992 document preceded this paper and focused on the way to identify the waters to be protected. See id. at 2.
296 See MAFF et al., Consultation Document: Designation of Vulnerable Zones in England and Wales under the EC Nitrate Directive (91/676) (May 1994) [hereinafter MAFF, Consultation]. Also in 1994, the Worldwide Fund for Nature called on the UK to enact even stricter nitrate legislation than required by EC legislation. See 17 Int’l Env’t Rep. (BNA) 355, 355 (1994).
297 See MAFF, Consultation, supra note 296, at 2–8.
298 See id. Annexes 1 & 2.
299 MAFF et al., Government Response to the Consultation on the Designation of Nitrate Vulnerable Zones in England and Wales 11 (1995).
300 See id.
301 Id. at 18.
302 See T. Etherton et al., Report of the Independent Review Panel on Nitrate Vulnerable Zones 21 (1995) [hereinafter Panel Report].
303 See infra notes 340–64 and accompanying text (discussing the Standley decision).
304 Panel Report, supra note 302, at 21.
305 See, e.g., Nitrate Vulnerable Zones, W. Midlands Farmer, May 1996, at 13; Liz Mason, NFV Say NVZ Decision is “Extremely Disappointing, Farmers W., Mar. 29, 1996.
306 See generally The Protection of Water Against Agricultural Nitrate Pollution (England and Wales) Regulations 1996, S.I. 1996, No. 888.
307 See id. Schedule 1.
308 Id. reg. 3(1).
309 See id. reg. 3(2). The first review is nearly complete, but publication of the consultation document was delayed by the Standley case, discussed infra. See Jennings Letter, supra note 284.
310 See S.I. 1996, No. 888, reg. 4 & Schedule 3; Nitrates Directive, supra note 118, art. 6.
311 See id. reg. 5. This regulation refers to the 1991 edition of The Water Code and was revoked in 1998 by reg. 9 of the Action Program, S.I. 1998, No. 1202. The 1998 edition of The Water Code refers to the Nitrates Directive. See generally The Water Code, supra note 292.
312 S.I. 1996, No. 888, reg. 6.
313 See supra notes 134–48 and accompanying text.
314 See S.I. 1996, No. 888, reg. 7 & Schedule 4.
315 The 1995 estimate of the capital cost of the proposed Action Program in NVZs was £10,000,000, with a recurring annual cost (including interest on the capital costs) of £3,000,000. Estimated costs varied within the dairy, beef, pigs, and poultry sectors. About 8000 farmers (including 150 in Wales) are subject to NVZ measures. Compliance costs for those farmers included costs of meeting the nitrogen loading threshold, additional storage, and transport of manures. See Department of the Environment et al., EC Nitrate Directive (91/676): Measures to Apply in Nitrate Vulnerable Zones in England and Wales, and Draft Regulations Transposing the Directive 8, 10–17 (1995).
316 See The Farm Waste Grant (Nitrate Vulnerable Zones) (England and Wales) Scheme 1996, S.I. 1996, No. 908. The Farm Waste Grant Scheme was enacted to comply with EC programs to improve the efficiency of agricultural structures. See id. explanatory note 1.
317 See id. reg. 3.
318 See id. reg. 4.
319 Id. reg. 6(1)(e). Other reasons also justify withholding a grant: other available sources of funding for the project, frustration of purpose of previous assistance, false or misleading information, or excessive expenditure. See id. reg. 6(1).
320 See id. reg. 6(2).
321 See Department of the Environment et al., supra note 315.
322 See generally Department of the Environment, Transport and the Regions et al., EC Nitrate Directive (91/676/EEC): Draft Regulations Establishing the Action Programme Measures to Apply in Nitrate Vulnerable Zones in England and Wales (1997).
323 See The Action Programme for Nitrate Vulnerable Zones (England and Wales) Regulations 1998, S.I. 1998, No. 1202.
324 Id. reg. 3(a).
325 See id. Schedule.
326 See id. reg. 6.
327 See id. reg. 4.
328 See S.I. 1998, No. 1202, reg. 5.
329 See id. reg. 8.
330 MAFF and Welsh Office Agricultural Department, Code of Good Agricultural Practice for the Protection of Water (PB 0587, July 1991) [hereinafter 1991 Code]. A MAFF survey from 1996 indicated that more than half of farmers did not know that codes for environmental management existed, and many farmers ignored important environmental practices. Only 44% of farmers knew about the water code, and even fewer had a copy. See Farmers Lag Behind in Implementing Good Environmental Practices Codes, 19 Int’l Env’t Rep. (BNA) 571 (1996).
331 See The Water Code, supra note 292. MAFF also revised its other codes in 1998, and although those codes have relevance to nitrates, The Water Code is intended to meet the Nitrates Directive requirements. See generally The Air Code (PB 0618, October 1998); The Soil Code (PB 0617, October 1998); The Water Code, supra note 292.
332 See The Water Code, supra note 292, at 70.
333 See Nitrates Directive, supra note 118, art. 4; The Water Code, supra note 292, ¶¶ 283–94 (though an apparent misnumbering on p. 70 lists other paragraphs). These paragraphs are stricter than the parallel provisions in the 1991 Water Code. See 1991 Code, supra note 330, ¶¶ 283–94.
334 See S.I. 1998, No. 1202, Schedule.
335 The Water Code, supra note 292.
336 See id. ¶¶ 283–88. For brevity, explanations here omit detail provided in the Code.
337 See id. ¶¶ 289–94.
338 See Guidelines, supra note 293.
339 See Manure Planning, supra note 293.
340 See Ex parte Standley and Others, Case 293/97 (Apr. 29, 1999), [1999] 2 C.M.L.R. 902 (also available at <http://curia.eu.int/jurisp>).
341 The NVZs were those affecting land draining into the River Waveney and the Rivers Blackwater and Chelmer. See id.
342 See Ex parte Standley, CO/2057/96; Ex parte Metson, CO/2064/96 (May 7, 1997). Both cases are also available on Lexis, ENGGEN library.
343 See EEC Treaty art. 177 (now Treaty art. 234). Article 234(b) gives the Court of Justice jurisdiction to give preliminary rulings concerning the “validity and interpretation of acts of the institutions of the Community . . . .” A Member State court can request a Court of Justice ruling. For more information about the process of preliminary rulings, see Court of Justice of the European Communities, Information Note on References by National Courts for Preliminary Rulings, available on the EU website at <http://curia.eu.int>.
344 See S.I. 1996, No. 888 (Mar. 21, 1996), effective Apr. 17, 1996, discussed supra notes 306-314 and accompanying text.
345 Standley, ¶ 13, [1999] 2 C.M.L.R. at 924.
346 Affidavit of Paul Bristow, Head, Water Quality Division, Department of the Environment, quoted in Standley, ¶ 13 (emphasis added), [1999] 2 C.M.L.R. at 924.
347 Standley, ¶ 15, [1999] 2 C.M.L.R. at 925.
348 See id. ¶ 18, at 925.
349 See id.
350 Standley, ¶ 20, [1999] 2 C.M.L.R. at 925.
351 The High Court judge indicated he could not resolve the primary issue of construction of the Directive with complete confidence. Further, he noted other reasons for the referral, including the Court of Justice’s advantage in construing an EC instrument, the need for uniform interpretation of the Directive, lack of EC authority, the pitfalls in entering an unfamiliar area, an issue of EC law that will resolve the case, no relevant disputed facts connected with the main issue, and the likelihood that the referral would not prolong the litigation. See Standley, CO/2057/96; Metson, CO/2064/96.
352 See Standley, ¶¶ 29–30, [1999] 2 C.M.L.R. at 927. Identification of waters under art. 3(1) of the Directive uses criteria from Annex 1, and Paragraph A.1. of Annex 1 does not require a precise determination of the sources of nitrates.
353 See Nitrates Directive, supra note 118, art. 5(3)(a).
354 See id. art. 3(5).
355 Standley, ¶ 33, [1999] 2 C.M.L.R. at 928.
356 Id. ¶ 35, at 928.
357 See id. ¶¶ 38–39, at 928–29.
358 See id. ¶¶ 41–51, at 929–30.
359 See id. ¶¶ 46–50, at 930.
360 See Standley, ¶¶ 51–53, [1999] 2 C.M.L.R. at 930–31.
361 Id. ¶ 54, at 931.
362 See id. ¶ 56.
363 See id. at 932.
364 Nitrates Directive: Commission takes further legal step against France, Press Release, IP/99/813, (Oct. 29, 1999) <http://europe.eu.int/rapid/start/cgi/guesten.ksh? p_action.gettxt=gt&doc=IP/99/813/0/RAPID&lg=En>.
365 See Treaty art. 174.
366 See id. art. 6.
367 See OECD, Environmental Performance Reviews: Denmark 154 (1999).
368 See id. at 157, 159.
369 See High regulatory costs for Danish farmers, Agra Europe (Oct. 22, 1999), at N/1.
370 See Ministry of Environment and Energy, Danish EPA, Agreement Relating to Action Plan for the Aquatic Environment II (Feb. 1998). This plan is intended to reduce nitrogen leaching and is an element of Danish implementation of the Nitrates Directive.
371 See Neil Hawke & Nadia Kovaleva, Agri-Environmental Law and Policy 273 (1998).
372 See Danish EPA, Notification to the Commission from the Danish Government (1998).
373 For information on manure regulation from the 1980s, see Wim Brussaard & Margaret Rosso Grossman, Legislation to Abate Pollution from Manure: The Dutch Approach, 15 N.C. J. Int’l L. & Com. Reg. 85 (1990).
374 The Wet herstructurering varkenshouderij, a law intended in part to reduce manure production by reducing pig numbers by 25%, was struck in February 1999 by the Rechtbank in The Hague. The law failed to compensate pig producers for their loss of pig production places. See Nederlandse Vakbond Varkenshouders v. Staat der Nederlanden, 1999 Milieu en Recht 79 (May).
375 See Marleen van Rijswick, Mest als voorbeeld van een (diffuse) bron van waterverontreiniging, 84 Het Waterschap 628 (1999).
376 See Measures Taken, supra note 217, at 35.
377 See Letter from L.J. Brinkhorst and J.P. Pronk, KAB 992933, Sept. 10, 1999, (visited Sept. 28, 1999) <http://www.minlnv.nl/infomart/parlemnt/1999/par99179.htm>. The new plan would allow farmers to keep their animals only if they could prove that they had sufficient land to spread the manure or if they had entered manure contracts with arable farmers. See id. at ¶ 4. After a brief positive reaction, farmers seemed to reject this plan. See New Dutch plan for pig reduction, Agra Europe, Sept. 10, 1999, at N/1; Dutch farmers reject new pig reduction plan, Agra Europe, Sept. 17, 1999, at N/3. The plan is expected to lead to reduction in farm numbers; many pig farmers expect to stop farming. See Dutch pessimistic about the future, Agra Europe, Oct. 1, 1999, at N/4.
378 See Letter from L.J. Brinkhorst and J.P. Pronk, KAB 996158, Dec. 3, 1999, (visited Feb. 15, 2000) <http://www.minlnu.nl/infomart/parlemnt/1999/par99255.htm>.
379 See Officials Acknowledge Legal Threat Posed by Failure to Meet EU Nitrate Directive, 23 Int’l Env’t Rep. (BNA) 21 (1999). The decision, which the government appealed, was the first to require the State to take measures to comply with an EC environmental directive. See id. at 22.
380 See GAO, Animal Agriculture: Waste Management Practices 3–4 (GAO/RCED-99–205, July 1999).
381 See, e.g., USDA & USEPA, Unified National Strategy for Animal Feeding Operations, Mar. 9, 1999, (visited Nov. 19, 1999) <http://www.epa.gov/owm/finafost.htm>.